Santone v Commissioner of Police

[2014] NSWDC 321

District Court

New South Wales

Medium Neutral Citation:	Santone v Commissioner of Police [2014] NSWDC 321
Hearing dates:	11-12 August 2014; 16 September 2014
Date of orders:	17 September 2014
Decision date:	17 September 2014
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I set aside the decision of the Commissioner of Police Decide that the condition of osteoarthritis of the plaintiff's right knee was aggravated by an injury in the course of the plaintiff's service and that such aggravation continues
Catchwords:	WORKERS COMPENSATION – Police superannuation – Whether plaintiff’s right knee injury caused by his having been hurt on duty – First record of complaint made when medically assessed for purpose of proceedings
Legislation Cited:	Police Regulation (Superannuation) Act 1906
Category:	Principal judgment
Parties:	Bruno Santone (Plaintiff) Commissioner of Police (Defendant)
Representation:	Counsel: Mr T Ower (Plaintiff) Mr J Dodd (Defendant) Solicitors: Walter Madden Jenkins (Plaintiff) Moray and Agnew (Defendant)
File Number(s):	RJ264/13
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff, Mr Bruno Santone, is a former senior constable of police. He was attested as a probationary constable of police on 2 April 1982 at the age of 19. He thereupon became a contributor to the Police Superannuation Fund, established by the Police Regulation (Superannuation) Act 1906 ("the Act"). On 29 November 2012, the Police Superannuation Advisory Committee (“PSAC”), established under the Act, certified that the plaintiff was incapable of discharging the duties of his office on account of the infirmities of "chronic post-traumatic stress disorder, chronic depressive disorder, alcohol abuse in partial remission, chronic soft tissue injuries in the capsule of the right shoulder, chronic soft tissue injuries to the low back, osteoarthritis of the left knee and osteoarthritis of the right knee".

2. On 18 December 2012, the defendant, the Commissioner of Police, by his delegate, determined that all but the last of those certified infirmities were caused by the plaintiff's having been hurt on duty, as that term is defined in the Act. On 26 February 2013, the defendant's delegate issued an amended certificate but the amendment is not presently relevant.

3. Shortly after the certification by PSAC of the certified infirmities, the plaintiff was medically discharged from the Police Force. Because the defendant accepted the majority of the plaintiff's certified infirmities were caused by his having been hurt on duty, the plaintiff became entitled to a hurt on duty pension under the Act.

4. The plaintiff considers himself aggrieved by the decision of the Commissioner of Police that the condition of osteoarthritis of his right knee was not caused by his having been hurt on duty and brings an application pursuant to s 21 of the Act to this Court. The plaintiff seeks an order setting aside the decision of the defendant that the suffering by the plaintiff of the infirmity of osteoarthritis of the right knee was not caused by his having been hurt on duty, and the plaintiff asks the Court to make a finding that his suffering of the infirmity of osteoarthritis of the right knee was caused by his having been hurt on duty.

5. In the statement of claim filed on 18 June 2013, the plaintiff relies on a frank injury occurring on 15 July 2009 and a second frank injury occurring on 28 June 2010 as well as the aggravation, acceleration, exacerbation or deterioration of the certified infirmity caused by the type of work that the plaintiff performed in the NSW Police. As eventually argued, the only physical stressor relied upon by the plaintiff was the frank injury of 28 June 2010.

6. The plaintiff attended Homebush Boys High School and obtained his Higher School Certificate. He then joined the NSW Police as a junior trainee and after completing that course, became a trainee. At the completion of his traineeship, he was attested as a probationary constable of police. His first posting was to Bondi, where he performed general duties between 1982 and 1985. He was then transferred to Bourke on 1 June 1985 and performed general duties in that town until 26 September 1987. Bourke is a community which has a number of social problems, which intimately involve members of the NSW Police. It is a difficult posting for members of the NSW Police. Perhaps as some form of reward for his service at Bourke, the plaintiff managed to obtain a transfer to Tweed Heads. He commenced there on 27 September 1987 and was to see out the rest of his service in the Police Force at Tweed Heads. The plaintiff was to make his home eventually at Banora Point.

7. Initially, at Tweed Heads, the plaintiff did plain clothes work and then general duties. He became a member of the Target Action Group (TAG) in either 2004, according to the history given by the plaintiff to Dr David Maxwell, whom the plaintiff saw on 13 February 2014; or in 2005, which was the date given in the plaintiff's evidence, although it was an approximate date. The plaintiff's work in TAG involved plain clothes undercover work.

8. To understand the current application, it is important to bear in mind the plaintiff's history of injuries sustained in the course of his service in the NSW Police. That history is conveniently set out in the primary report of Dr James Scougall, who examined the plaintiff on 7 March 2012. The first injury that the plaintiff sustained was very shortly after the plaintiff commenced work in the Police. Dr Scougall's history has the injury occurring as in or about 1981, but it is clear from the rest of the history that it occurred after the plaintiff commenced his service on 2 April 1982. The injury of 1982 was to the plaintiff's right shoulder. The next relevant injury occurred on 31 December 2001. The plaintiff, on that occasion, injured his left knee when he fell in a confrontation with an offender. By that time, he had become a leading senior constable and was then doing general duties. The plaintiff sustained further injuries to his left knee on or about 4 June 2003 and 15 November 2004. The injury of 4 June 2003 occurred when the plaintiff was escorting a female offender to a police vehicle and stepped awkwardly off a footpath onto a road surface. On 15 November 2004, the plaintiff was involved in arresting another female offender, when he sustained not only injury to his left knee, but also to his right thumb. It appears that the plaintiff needed to use his left knee in order to gain control of the person he was arresting. On that occasion, the plaintiff's then general practitioner, Dr York, who was later to pass away, referred the plaintiff to Dr Philip Allen, an orthopaedic surgeon at Banora Point. The plaintiff underwent arthroscopy on 20 January 2005. There was shown to be a small medial meniscal tear and a large medial compartment chondral flap. Some six, perhaps up to twelve months, later, the plaintiff was seen by another orthopaedic surgeon, Dr Chris Vertuello, an orthopaedic surgeon, at Southport. Dr Vertuello carried out another arthroscopic procedure on the plaintiff's left knee. At that time, it was anticipated that eventually, the plaintiff would require further surgery to his left knee, but that has not yet occurred.

9. The plaintiff sustained injuries to his back, left shoulder, left knee and right wrist on 13 February 2007. The plaintiff was further injured on 12 September 2007, when he was pursuing an offender on foot and jumped from a height of a metre onto a structure which collapsed. The plaintiff noticed immediate pain in his previously symptomatic back and left knee. He also noticed pain in his ankles and both legs at the time, however there was no complaint of pain in the right knee. The plaintiff's next injury was on 20 September 2008, when he injured his right elbow and right forearm when arresting two offenders who had become violent and aggressive.

10. Chronologically, the next injury occurred on 15 July 2009 and is one of the two frank incidents pleaded in the statement of claim. Exhibit F refers to this event. The narrative given in exhibit F, the incident notification form, is this:

"During arrest of offender, violent struggle ensued, during which time exposed to skin sores of accused. Also both knees skinned as well as left hand soreness to lower back. Not reporting off sick but will monitor injury".

The form itself says that it was the notification only, and that there was no time loss or treatment or any injuries requiring first aid. The plaintiff, in his evidence, confirmed grazing each knee over the kneecap. The plaintiff thought he may have applied first aid, which may have been merely a dressing to cover the abrasions on his kneecaps. The plaintiff told me that he did not lose any time off work and did not need to see his GP about the event. Early in cross-examination, the plaintiff confirmed that between that event and the event relied upon on 28 June 2010, he had no symptoms in his right knee. The event was, clearly, transient and does not appear to have involved any structural injury to the plaintiff's right knee.

11. This event only become significant when Dr Scougall, in his primary report, expressed the opinion that this event was the cause of the osteoarthritis in the plaintiff's right knee, but on a review of history in a subsequent report, Dr Scougall changed his opinion to one suggesting that the cause of the plaintiff's right knee osteoarthritis was the event of 28 June 2010. The plaintiff gave histories to Dr Scougall and Dr Robinson, who examined the plaintiff for the administrator of the Police Superannuation Fund on 16 October 2012 that he saw his general practitioner, Dr Cameron, after the injury of 28 June 2010, but those histories are incorrect. The plaintiff accepts that.

12. On 28 June 2010, the plaintiff was seeking to arrest an offender identified as Dean Christopher Hoger. Acting on information conveyed to him by colleagues, the plaintiff was made aware of where that offender might be. He went to the location, where there were two other police observing Hoger. Hoger drove a vehicle away from a location in South Tweed Heads and drove to the top of Sexton's Hill at the intersection of Terranora Road and the Old Pacific Highway. At that place, Hoger brought his vehicle to a stop at a convenience store on a corner. The other police vehicle containing the plaintiff's two colleagues stopped alongside it and when Hoger realised that they were police officers, he "decamped" from his motor vehicle. In other words, the offender "bolted". The plaintiff set off in pursuit of the offender. The plaintiff gave this evidence:

"He was running, and we ran down the side of a business there, I think at the time it may have been a real estate agent, down on a boundary lane that was separated by a brick wall from another adjoining property [...] it went up an incline with a concrete path on that incline. I followed the concrete path that was on the southern side of the brick line, and that was a concrete walkway that was level; it didn't incline. At the rear of the property, there was some boundary fencing, which was 1.8 metres high, and the incline on the property on the northern side was a 1.8 metre climb. Where I had been running to pursue the offender, there was like a retaining wall, and at the end of that retaining wall, there was an air conditioner that had been covered by a man made fixture. I think it was made in fibro. I now know that it was made in fibro. At the time, I didn't know. The offender started to climb the fence, and I realised that I had an area of about 1.8 [metres] to climb before I got to the fence, which was another 1.8 metres high. I tried running onto that retaining wall which separated the two properties and jumped on my right leg, and then I manoeuvred myself over to the air conditioner, which sat high at the boundary, and when I landed on that structure with my left leg, it gave way. Being fibro, it didn't withstand my weight...It gave way, and I tried to jump backwards off it, and I landed primarily on my right...foot."

The plaintiff landed upright. He had fallen 1.6 metres. He felt immediate pain in his right knee and was unable to continue to chase the offender. The offender escaped the attempts of other police to arrest him. He could not be located by the plaintiff's colleagues.

13. The plaintiff limped back to his police vehicle, suffering pain in his right knee. The plaintiff said this of his right knee after this event:

"It was inflamed; it was sore; I commenced immediate treatment with icing. At that time, I didn't think the injury was severe, and I tried to self-manage it."

The plaintiff thought that the symptoms subsided after about a fortnight. The plaintiff's evidence is consistent with the incident notification form made by his supervisor, Detective Sergeant Maroney. That document became exhibit G. That document confirms that it was a notification only and that there was no time loss or treatment required. The form itself indicates that no first aid was required, but that does not deny that the plaintiff may have treated himself by applying an ice pack or the like, and the form completed by Sergeant Maroney indicates the plaintiff was suffering a sharp pain in his right knee, causing him considerable discomfort. However, it is common ground that the plaintiff did not lose any time from work and did not seek any immediate medical attention.

14. The plaintiff did see Dr Cameron on 9 August 2010. The history and complaints recorded by Dr Cameron in his notes on that occasion are these:

"Work related stress, always thinking about work, in charge of police Target Action Group, targets high risk groups, in police force 29 years. Snores. Drinking more than he should. Previous marriage breakdown, now with Kerry for past ten years and all good. Increased frontal headaches, previously investigated."

The Doctor's examination was essentially of the plaintiff's vital statistics, his blood pressure, pulse, height, weight and body mass index. The plaintiff was, on that occasion, referred to Dr John Feenstra, who was treating the plaintiff for obstructive sleep apnoea. Dr Cameron, on 9 August 2010, also required a large batch of pathology testing, essentially of the plaintiff's blood. It is clear that the plaintiff's primary concern on that occasion was of a psychological nature, and the doctor's primary concern was the treatment of the plaintiff's obstructive sleep apnoea.

15. Another injury occurred to the plaintiff on 19 August 2010. It did not involve his right knee, but is put forward by the defendant as an incident which could be considered to be inconsistent with the plaintiff's allegation of some ongoing discomfort in his right knee. According to exhibit 2, the incident notification form, the following occurred:

"About 3pm on Thursday, 19 August 2010, Police attended [an address in] Condong in an attempt to arrest the POI Dean Hoger, [date of birth provided], who was hiding out from Police. Hoger was wanted on ten arrest warrants, break, enter and steal offences, steal motor vehicle and other matters. On arrival, Police observed the POI inside the premises [,] who immediately ran into a bedroom. Police pursued the POI through the premises, into the bedroom, where he jumped through the flyscreen of a second storey window onto the roof of a nearby shed. Senior Constable Santone also jumped from the window onto the roof of the shed, and landed heavily on his left leg, which caused immediate pain to the left knee region and lower back area. The POI was arrested a short time later. Following the arrest of the POI, Detective Sergeant Natoli was informed of the injury sustained. Since the incident, Senior Constable Santone has continued to feel discomfort in both areas. The injuries at this stage have been self-treated with regular icing. If pain persists, medical treatment will be sought."

The incident report form was in fact made by Detective Sergeant Natoli.

16. I decline to ascribe to this incident the significance to which the defendant asks. It is common ground that after 28 June 2010, the plaintiff continued to do his normal duties, including TAG work, until stopping work in February 2011, essentially because of a psychiatric illness. Such pursuits of offenders are fairly common for uniformed police, and also sometimes detectives, and very often for members of a TAG. Often, such pursuits can occur without any incident of injury to the police concerned. For example, the plaintiff's next attendance upon Dr Cameron was on 27 August 2010, eight days later. The plaintiff attended upon Dr Cameron on 27 August for the results of the pathology investigations to be conveyed to him and for a check of his blood pressure. Dr Cameron records no complaint of back pain or left knee pain following the event of 19 August 2010, which is not even mentioned. On that occasion, Dr Cameron prescribed a new medication for the plaintiff, but that caused side effects. The side effects were a rash and swelling. For that, the plaintiff saw Dr Cameron on 15 September 2010. The new medication was stopped. The plaintiff told Dr Cameron that recent sleep studies had confirmed the diagnosis of obstructive sleep apnoea and the plaintiff told the Doctor that he needed time off work. A medical certificate was provided to the plaintiff.

17. The plaintiff attended on Dr Cameron again on 28 September, as had been arranged on 15 September. There is a reference to the plaintiff's diagnosis of obstructive sleep apnoea and treatment given to him for that, and the plaintiff's attempts to lose weight and the plaintiff's reducing his alcohol intake. There is also reference "physiotens" which is some form of oral medication. The Doctor's notes suggest that taking that medication may have been causing some oedema, but what areas of the body were swelling because of that cannot be discerned from the notes. There is no suggestion of any orthopaedic complaint, but the Commissioner of Police accepts that, for example, the plaintiff's back was the subject of ongoing problems, as well as his left knee and his right shoulder.

18. The plaintiff's next visit to Dr Cameron was on 12 October 2010, when there was a review of his blood pressure, a discussion about his sleep apnoea, a discussion of his alcohol intake, and a discussion of "work stress", because the plaintiff had been advised by his new superior that the person the plaintiff was then training was due to replace him. Clearly, that must have indicated to the plaintiff that his job was in jeopardy, and one could understand that that would cause him stress.

19. The plaintiff saw Dr Cameron again on 21 October 2010 concerning a foreign body in his right eye, which the plaintiff perceived since he was working in his shed at home on the previous day. The plaintiff thought there was a foreign body under the inner aspect of the upper lid of his right eye. Dr Cameron could not find any foreign body, but did notice a small central corneal abrasion. Eye drops were prescribed.

20. The next consultation was on 1 November 2010, when the plaintiff's blood pressure was noted to have been taken earlier that day. The blood pressure taken by Dr Cameron in the surgery was different. The systolic was lower and the diastolic was higher when taken by Dr Cameron. Again, there was a discussion of the plaintiff's medication for his general health, and the plaintiff told the Doctor that he was going to the Sunshine Coast in Queensland for a two week holiday, and then he expressed a view to the Doctor that he would like to work for at least another year in order to complete 30 years of service in the New South Wales Police. Unfortunately, that was not to occur.

21. The next consultation was on 28 January 2011. The plaintiff told Dr Cameron that he was "fed up" with work-related stress. Despite having a machine to control his obstructive sleep apnoea, the plaintiff was not sleeping well. He was taking medication to control headaches. There was a review at that time of the plaintiff's medication and the commencement of treatment with a drug used to treat psychological or psychiatric conditions.

16. The next attendance upon Dr Cameron was on 21 February 2011. It would appear that immediately after that consultation, the plaintiff stopped his active service with the New South Wales Police. There was a discussion about the plaintiff’s ceasing to take the drug to control headaches and his commencing the treatment with the drug for his psychiatric/psychological problem. The plaintiff told Dr Cameron that he felt terrible, that he was not sleeping well, he was suffering from nightmares and flashbacks of multiple traumatic incidents that occurred to him in the past. He told the Doctor of previously having to take six months off work after being subject of a major assault on one occasion and finding it necessary to "douse it with alcohol". After the recording the assault which caused the plaintiff to be off work for six months, the Doctor has written in "et cetera, et cetera" which means the plaintiff probably gave the doctor a long history on that occasion of traumatic events which had occurred to him in the course of his service.

17. The plaintiff has not worked in the NSW Police or, as far as I am aware, elsewhere, since. The plaintiff submitted a claim for medical retirement. For that purpose, he was sent to see Dr Scougall by his solicitors. He saw Dr Scougall on 7 March 2012. Dr Scougall is the first medical practitioner who records a complaint of pain in the plaintiff's right knee.

18. As a result of the plaintiff’s seeing Dr Scougall on 7 March 2012, the plaintiff saw Dr Cameron on 15 March and the plaintiff told Dr Cameron that he had been reviewed by an orthopaedic surgeon in Sydney clearly Dr Scougall and he needed a referral for X-rays of his knees. Dr Cameron requested imaging of the plaintiff's right and left knees and required Rosenberg views to assess the cartilage space interval and then the Doctor notes, "work related injuries".

19. It is common ground that the first mention of actual pain in the right knee to Dr Cameron or to his colleagues at the Banora Point Medical Centre was on 6 November 2012 or when the plaintiff saw Dr de Castro, to whom the plaintiff complained of a "recurrence of pain and swelling in right knee since yesterday morning". Dr de Castro noted no symptoms of infection. He prescribed Panadol Osteo tablets and told the plaintiff to see Dr Cameron for review.

20. The plaintiff saw Dr Cameron on 12 November 2012 and Dr Cameron recorded a history of "recurrent right knee swelling/pain/locking". He referred his patient back to Dr Vertuello, who had previously treated the plaintiff's left knee. The referral letter to Dr Vertuello says this:

"Bruno has been having trouble with his right knee for quite some time. There is some locking, but no giving way. He has presented on several occasions with acute pain and swelling. A? meniscal tear."

"Several occasions" might refer to 6 November 2012 and 12 November 2012. However, it might refer to other occasions when the plaintiff did complain to Dr Cameron or his colleagues of right knee symptoms, but the complaint was not recorded. The plaintiff, despite vigorous cross-examination, maintained the stance that at some stage before stopping work, he had mentioned both his knees to Dr Cameron.

27. The plaintiff clearly has a large number of orthopaedic problems, and clearly, in 2010 and 2011, there were a large number of matters affecting the plaintiff's health. General practitioners are very busy people. Patients often make multiple complaints. I can accept that busy general practitioners sometimes do not record every complaint, but only the major complaints.

28. Clearly, the plaintiff was having ongoing problems with his left knee and had been having ongoing problems with his left knee of a major nature since 15 November 2004, at least, which led to the first of the two arthroscopies to his left knee. The defendant accepts that the plaintiff's ongoing left knee complaints are referrable to injuries which the plaintiff received in the course of his service in the NSW Police. The plaintiff's experience of symptoms in his left knee since December 2001 and the surgery practised in 2005 and ongoing problems thereafter would clearly have shown to the plaintiff how symptoms could flare up and then settle, and show the plaintiff how he could treat such flare ups by, for example, resting his knee, applying ice, stretching or other exercises he had learned with the passage of time.

29. When the plaintiff developed symptoms in his right knee after 28 June 2010, I can accept that he might apply the same regimen of self-treatment to his right knee as he did to his left. I can also accept that the plaintiff may have told Dr Cameron from time to time of his ongoing problems with his left knee and at some stage, that may have been changed to ongoing problems with both his knees, and I can accept that Dr Cameron or his colleagues may not have recorded the symptoms which they perceived could be ongoing, intermittent but chronic.

30. As I have said earlier, the plaintiff's evidence is that the symptoms following upon the event of 28 June 2010, settled after about a fortnight. That is a relatively long period to have symptoms in a joint, when one is continuing to do active work as a police officer, especially in TAG. In chief, the plaintiff said that he believed that after the immediate recovery from the event of 28 June 2010, there were certain sequelae that he initially referred to as "niggling". The plaintiff said that over the ensuing 12 months, he noticed on occasions that his right knee would swell up again and cause him problems when he was walking. It felt as though he had a “floater” in his right knee. By that, he meant it felt as if he had a piece of floating bone. He had had that experience in the past, but in his left knee. When he had those symptoms in his right knee, he self-managed them, and they went away over a period of "days". He said this:

"I'd stop and I'd give my [...] knee a bit of a shake and slowly move it from side to side and massage it, and I'd find that the pain would go away fairly quickly and I would be able to walk again."

After the plaintiff stopped working, he did have episodes with his knee. He said this of such episodes:

"It would become inflamed without any prior symptoms. It would swell up. I found it difficult to move. I found it difficult walking upstairs, something which I had not experienced before walking downstairs".

He had not noticed any such problem prior to 28 June 2010. In other words, the plaintiff was telling me that after 28 June 2010 and after he stopped working on or about 21 February 2011, he continued to have ongoing intermittent symptoms affecting his right knee which he had not experienced in the past; that is, prior to 28 June 2010.

31. Until seeking treatment from Banora Point Medical Centre in November 2012, he had not actively sought medical treatment for of his right knee. However, it is clear that the plaintiff had other ongoing orthopaedic problems, in particular, in his left knee and back, for which he was taking pain killing medication, which his wife obtained from the chemist shop at which she worked.

32. The clear thrust of the plaintiff's evidence was that there was some permanent change in the condition of his right knee after 28 June 2010, which made him liable to experience intermittent flare ups of pain and other symptoms in the right knee, clearly fixing in the plaintiff's mind the view that there had been some ongoing problem in the right knee, referrable to the event of 28 June 2010.

33. I heard the plaintiff's evidence. There was nothing implausible in it. There was nothing which causes me to reject the thrust of Mr Santone's evidence that he did notice this change in the condition of his right knee after 28 June 2010. I accept that after that event which caused him symptoms for at least a fortnight, he had, thereafter, ongoing intermittent episodes of knee pain, discomfort and swelling, which eventually caused him to make the complaint he made to Dr Scougall on 7 October 2012 and to the Banora Point Medical Practice in November 2012.

34. There is one thing which I should mention, which was not the subject of any submission made by the defendant. In his evidence in chief, the plaintiff was taken to records of Dr York, a medical practitioner who had been treating to the plaintiff prior to Dr York's death. After Dr York's death, the plaintiff commenced seeing the doctors at the Banora Point Medical Centre. Dr York's notes indicate a complaint of right knee pain in 2007. The plaintiff was made aware of that record by his counsel. When asked if he could explain that, the plaintiff said this:

"I'd received an injury to my back, lower back, and I'd been to a physiotherapist or somebody, expert in that field, and I did mention to Dr York on occasion that I'd suffered some pain in my right side of my knee as a result of that injury, but it wasn't I think it was more to do with the treatment at that time."

In other words, the plaintiff attributed a complaint of right knee pain to iatrogenesis, perhaps a word which I misuse, if the symptoms were caused by treatment by a physiotherapist. However, sometimes in manipulating the body, additional symptoms can be caused. It was not suggested by the defendant that the plaintiff's explanation of the cause of right knee pain in 2007 was otherwise or was the cause of any ongoing symptoms after 2007. I accept the plaintiff's explanation. I therefore, and I can assign no significance to a complaint recorded of right knee pain in 2007.

35. The dispute before the Court largely results from the misuse of language by medical practitioners and, in other ways, to semantics. For example, Dr Scougall said in his supplementary report that the cause of the osteoarthritis in the plaintiff's right knee was the injury of 28 June 2010. In his oral evidence, Dr Scougall did not maintain that proposition. He accepted that there were two constitutional factors which gave rise to osteoarthritis which itself, was a constitutional condition.

36. The first constitutional condition was a genuvalgus; that is, the plaintiff is slightly bow legged. The extent of the bowing of his left leg is greater than the extent of the bowing of his right leg. However, genuvalgus is constitutional. The other "constitutional" condition which causes or contributes to the plaintiff's osteoarthritis in his knees I use the plural advisedly is the plaintiff's weight. He is not a small man; he is a large man, a well-built man, and he has been described as moderately obese and he is probably like most men of mature age in our community.

37. Dr Scougall clearly accepted that the genuvalgus and the plaintiff's weight and the osteoarthritis itself were all constitutional conditions. Dr Scougall relied upon the event of 28 June 2010 as being an aggravating factor in the development of the plaintiff's right knee osteoarthritis. Dr Maxwell, qualified by the defendant, is of the same opinion. However, Dr Maxwell, in essence, says that the aggravation caused by the event of 28 June 2010 ceased. In his primary opinion, Dr Maxwell said this:

"He now has symptoms in both knees. The symptoms in his right knee are typical of early medial compartment osteoarthritis, perhaps with a chondral flap. The specific tests for a meniscal injury are negative. I consider it is unlikely he sustained a tear of the meniscus on 28 June 2010. There may have been some temporary aggravation of some underlying degenerative changes, but overall, I do not consider the incidents of 15/7/09 or the 28/6/2010 had a significant impact on the medial compartment osteoarthritis of his right knee, which is a constitutional condition."

Later, in his report, he said this:

"Dr Scougall suggested that the symptoms in each knee were related to injuries sustained when employed by the New South Wales Police. I disagree and consider that the symptoms in his right knee are essentially constitutional and not related to any specific injury, nor the nature and conditions of his employment."

The root of the word "aggravation" is the Latin adjective "gravis". That merely means heavy. To aggravate something is to make it heavier or more grave; another way of saying to make worse. The word "deterioration" means to make a condition worse. The formula in the worker's compensation legislation also includes the word "exacerbation". The root of that word is the Latin adjective "acer" which means sharp. It means to make a condition more sharp or more acute, and is generally taken to refer to the triggering off of painful symptoms.

38. One can see the event of 28 June 2010 as being the triggering off of symptoms of the osteoarthritis. If one uses the word "exacerbation", one could say that the exacerbation of the plaintiff's right knee condition ceased when his symptoms remitted after about a fortnight. However, the question remains, as put in his oral evidence by Dr Scougall, as to whether the events of 28 June 2010 caused an aggravation of the underlying osteoarthritis; that is, made the condition itself worse.

39. I have a philosophical and linguistic difficulty with the idea of an aggravation ceasing if one looks at it in terms of raising the symptom level higher or the underlying condition itself higher. It is hard to see how an aggravation, that is, a making worse of a condition could "cease". Clearly, that would apply to an exacerbation, but I have difficulty in accepting it applying to an aggravation, strictly understood as such.

40. Medicine is an art as well as a science. Dr Scougall is a very experienced orthopaedic surgeon. He felt confident that there had been an aggravation of a permanent nature to the plaintiff's osteoarthritis in his right knee in the event on 28 June 2010. That ties in with the perception of the plaintiff himself. Dr Scougall mentioned three matters which, to him, were important in coming to his view that there had been some permanent aggravation. They were the severity of the injury, the time it took for the initial symptoms to settle and the third factor was the subsequent history of the complaints. Here, the injury stopped the plaintiff "dead in his tracks", so to speak. He had to desist in his pursuit of Dean Hoger. Fortunately, he was to catch up with Mr Hoger on 19 August 2010. The injury caused acute pain and swelling, and symptoms persisted for two weeks. In my view, that is a significant insult to the right knee. That deals with the first two considerations taken into account by Dr Scougall.

41. The subsequent history, I have sought to outline in my earlier reasons. Clearly, the plaintiff perceived that thereafter that is, after the two weeks after 28 June 2010 there was an ongoing, intermittent problem in his right knee, which was never the same again. Taking into account those three matters, I accept that there has been some permanent aggravation of the underlying osteoarthritis in the plaintiff's right knee caused by the event of 28 June 2010. In particular, that event caused symptoms and caused the plaintiff to be prone to relapses of symptoms, prone to aggravation by minor events which could be classified now as relatively minor. I also point out this: In the arthroscopy practised on 20 January 2005 of the plaintiff's left knee, not only was there a medial meniscal tear, but there was a large medial compartment chondral flap. Although Dr Maxwell excludes the likelihood of a tear of a meniscus in the event of 28 June 2010, the Doctor cannot exclude that the plaintiff currently has a chondral flap in the medial compartment of his right knee, and that chondral flap could well have been caused by the event of 28 June 2010. By saying it could well have been caused, I do not mean to find that on the balance of probabilities. That would be perverse. It is only a conjecture on my part, but it is a possibility which cannot be excluded. If surgically, he is found to have a chondral flap, then one might well attribute it to the event of 28 June 2010.

42. The defendant largely relies upon the repeated attendances upon the Banora Point Medical Practice by the plaintiff after 28 June 2010, until the complaint is recorded in November 2012 and the absence of any mention of the plaintiff's right knee during that period, other than for the sake of having X rays performed at the behest of Dr Scougall. However, when one looks closely at the notes, one can see that there was a large amount going on in the plaintiff's life in 2010, 2011 and 2012, which caused the plaintiff untold mental anguish as well as ongoing physical pain. The plaintiff's life was "a mess" and one might be forgiven for thinking that he may have failed, from time to time, to mention all his symptoms or that his general practitioner may have failed, from time to time, to record all his symptoms. For example, on 18 April 2011, Dr Cameron's notes, in essence, record the substance of a medical report which he made for "WorkCover" but I assume for the hurt on duty section of the NSW Police. The first major complaints recorded are of anxiety, depression, sleep disturbance, nightmares, flashbacks and alcohol dependence. There is then reference to multiple traumatic work incidents involving exposure to numerous severe road accidents, numerous homicides as well as assaults. There is reference to the plaintiff’s being forced to take time off work because of escalating symptoms of post-traumatic stress disorder secondary to the multiple incidents that the Doctor made mention of. There is then reference to the plaintiff's treatment by way of antidepressants, anti-hypertensives and ongoing management by a psychiatrist, Dr Mark Scurrah. There is reference to a prognosis which was not favourable, and of an opinion that the plaintiff would be unable to ever return to work in the Police but of the general practitioner being guided in that regard by Dr Scurrah.

43. Clearly, the certificate of PSAC indicates the plaintiff was then not fit to return to work in the Police, and it is likely that he will never return to work in the NSW Police with such multiple physical and mental problems. In addition to work related problems, there is also reference to difficulties the plaintiff was having with his son, whose health itself was parlous, with his mother in law who had her own medical problems, and other sorts of stressors which can only have contributed to the misery that the plaintiff was suffering in 2010, 2011 and 2012.

44. For those reasons, I set aside the decision of the Commissioner of Police on 18 December 2012 that the suffering by the plaintiff of the infirmity of osteoarthritis of the right knee was not caused by his having been hurt on duty.

45. I decide that the condition of osteoarthritis of the plaintiff's right knee was aggravated by an injury in the course of the plaintiff's service on 28 June 2010 and that such aggravation continues.

46. I order the defendant to pay the plaintiff's costs.

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Decision last updated: 08 May 2015